Caroline Chelagat Sigilai v Republic [2004] KEHC 1207 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NO. 526 OF 2003

(From original conviction and sentence of the

Principal Magistrate’s Court at Nyahururu in

Criminal Case No. 4241 of 2003 )

CAROLINE CHELAGAT SIGILAI……………….APPELLANT

VERSUS

REPUBLIC…………………………………….……RESPONDENT

JUDGMENT

The Appellant, Caroline Chelagat Sigilai was charged with the offence of concealing birth contrary to Section 227 of the Penal Code.The particulars of the charge, were that on the 5th of November 2003 at Shauri Village Nyandarua District the Appellant concealed birth by throwing a one day old child into a pit latrine. The Appellant pleaded guilty to the charge. She was sentenced to serve three years imprisonment. The Appellant was aggrieved by the said conviction and sentence and has appealed to this court.

At the hearing of the Appeal, Mr Gumo, the Assistant Deputy Public Prosecutor conceded to the Appeal. He submitted that the Appellant had been convicted on an incurably defective charge. The particulars of the offence did not disclose an offence, he added. He further submitted that for the offence of concealing birth to be complete there has to be a dead child. In the present case, he submitted there was no dead body. The child in question who had been thrown into a pit latrine was rescued alive and was still alive. For the said reasons, the Learned Assistant Deputy Public Prosecutor submitted, the particulars did not disclose an offence and therefore the Appeal should be allowed. Mr Chege, Learned Counsel for the Appellant naturally was delighted by the turn of events and did not have anything useful to add to the submissions by the Assistant Deputy Public Prosecutor.

Section 227 of the Penal Code states:

“Any person who, when a woman is del ivered of a child endeavours by any secret disposition of the dead body of the child to conceal, whether the child died before, at or after its birth, is guilty of a misdemeanour.”

As Mr Gumo rightly submitted for the offence of concealing birth to be complete, the child in question must be dead. In the instant case although the Appellant threw the child into a pit latrine, the cries of the child alerted the members of the public who broke into the pit latrine and rescued the infant. The infant was rescued alive and at the time the Appeal was being heard the Appellant was cradling the child in court. As Mr Gumo stated in court, with his tongue firmly in the cheek, the Appellant was holding “the Exhibit” in court. The Appellant could not therefore be charged, more so, be found guilty of concealing a birth. The Appellants action, while being reprehensible, unfortunately did not fall within the definition of the offence of concealing a birth. It is an irony of fate that by helping to rescue the infant who had been thrown into the pit latrine, the members of the public rescued the Appellant from the jaws of the law.

In the pre mises therefore, the Appeal has to succeed. The Appellant was charged with a non-existent offence. The particulars that were stated in court did not disclose any offence known in law. The Appellant has apparently benefited from a lacunae in the law. As an administrator of the law, I have no option but allow the Appeal, even though the Appellant’s action was morally reprehensible. She did not commit any offence known in law. Her conviction is consequently quashed and the sentence imposed set aside. The Appellant is set at liberty unless otherwise lawfully held.

DATED at NAKURU this 19th day of November, 2004.

L. KIMARU

AG. JUDGE